Use It, or Lose It

In a new book, two respected scholars defend the critical role of “fair use”

By Andrew Richard Albanese
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Dec 02, 2011

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When it comes to copyright, the discussion today invariably focuses on piracy. For today’s large copyright-based industries, almost any unauthorized use of their content is considered stealing. But the real question may be what such a restrictive reading of copyright steals from the public. In Reclaiming Fair Use: How to Put Balance Back in Copyright (Univ. of Chicago, 2011) authors Patricia Aufderheide and Peter Jaszi look at the impact of today’s copyright policies on creativity and argue that fair use—that long-embedded if often misunderstood core principle of copyright—can help creators cut through the static of today’s confusing, contentious copyright environment.

The book, brimming with highly readable, real world examples, is a true interdisciplinary effort. It grew out of discussions between the two American University professors—Aufderheide, who works with documentary filmmakers, and Jazsi, a highly regarded law professor—following a conference on copyright issues facing creators.

“One of the interesting things we discussed was how misunderstanding about copyright constitutes a real constriction of creativity,” Aufderheide tells PW. “Because of my 30-year relationship with the documentary filmmaker community, I was able to get people to speak frankly about the problems they’ve had. The filmmakers themselves ended up being surprised at the level of self-censorship they were employing. We’d ask them about projects that may have been hampered or forestalled because of not being able to license things, and they’d say, ‘Oh, we don’t have those problems, we know what we can’t do, we know the law.’ But, actually, a lot of the things they talked about were just interpretations of the law, usually by gatekeepers. That kind of unlocked the issue for us: how do you measure something that’s not there? How do you measure imagination foregone, when people don’t even think of doing something because they think they can’t do it under copyright law?”

In today’s wired world, more and more people have had some kind of copyright clash—whether being blocked by YouTube from uploading a video because of a copyrighted song; a cease-and-desist order over downloaded music; perhaps a librarian grappling with e-reserves, or teachers looking for guidance on classroom use. Fair use, the authors argue, can help.

“In a world where the public domain has shrunk drastically,” they write, “[fair use] creates a highly valuable, contextually defined, floating public domain.” The assertion of fair use is part of a larger project: to “reclaim the full meaning of copyright policy, not merely protection for owners, but the nurturing of creativity, learning, and expression.” And with new legislation, like SOPA, and new technological regimes emerging to limit access to copyrighted material, the book could not be more timely.

“I think a goal of this book—and this should resonate with PW’s audience—is to help to make fair use as practically available to all kinds of creators as it has traditionally been to the publishing industry,” Jaszi says. “The American publishing industry has been the foremost champion of the idea that has come to be understood as transformative fair use—that if you take appropriate amounts of protected content and add value to it in some significant way, you’re not an infringer. You are, in fact, exactly the kind of user our copyright seeks to encourage.”

PW caught up with Aufderheide and Jaszi to talk about copyright, fair use, and the challenges facing creators and educators in America.

With the advent of the Internet, it sure feels like the copyright discussion has become more and more tilted toward “piracy.” Has that had an effect on how people perceive fair use?

Peter Jaszi: Yes, and it’s a problem. The great irony is that all these industry campaigns against piracy or downloading or file sharing have not been successful in addressing the problems they are meant to address, and they have done enormous collateral damage to creators. Whatever one thinks of the record industry’s campaign against file sharing, for example, it’s very clear to me that threatening and then bringing lawsuits against individual downloaders has had an enormous chilling effect on creative communities.

Pat Aufderheide: To paraphrase something Peter once said, fair use has been kind of an innocent bystander in the media industry’s attempt to control downloading. The big message from the media is that downloading or copying or using material without permission is bad—that it’s stealing or plagiarism. And not only has all of that publicity and intimidation chilled users from making fair uses, it has also convinced some copyright owners that they’re in total, complete control of their material, and that anyone who uses it without authorization is a thief and a bad person. But that is not the law. And because we’ve developed this moralized language around copyright ownership, we have also now created a language of immorality around using unlicensed copyrighted material. This is very poisonous, and you can see people’s misunderstandings when you start to work with them on these questions. People have an almost fearful approach: they don’t want to be seen as bad people—they don’t want to cheat or steal or be called a pirate.

Peter Jaszi: A point I would add, and it’s a point we dwell on in the book, is that when we talked about copyright issues with creators, there were some very important things to creators that actually aren’t covered in U.S. copyright law. For example, we found that creators are often as concerned with getting proper attribution as they are about making sure that every use of their material has a price or comes with permission, and that’s a subject U.S. copyright law is really silent on, even though it’s at the heart of the creative community’s concerns. It’s not all about money. Many creators see the value of a lively fair use doctrine, but they want that to include an emphasis on attribution.

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